[Cite as Elias v. Akron , 2019-Ohio-4657.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) JOSEPH J. ELIAS, et al. Appellees

v. CITY OF AKRON Appellant C.A. No. 29107

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2017-01-0342

DECISION AND JOURNAL ENTRY Dated: November 13, 2019

SCHAFER, Judge. {¶1} Defendant-Appellant, the City of Akron (the “City”), appeals th e decision of the Summit County Court of Common Pleas denying the City’s motion f or summary judgment claiming immunity on the basis of political subdivision immunit y pursuant to R.C. Chapter 2744.

This Court affirms.

I. {¶2} Clare Elias, and husband Joseph Elias, Plaintiffs-Appellees in this matter, were riding their motorcycles in Akron, Ohio, on March 21, 2012. As the pair traveled on North Howard Street, Clare was abruptly thrown from her motorcycle to the gr ound. She was transported to the hospital by ambulance for the tr eatment of injuries she sustain ed in the accident. {¶3} It was subsequently determined there was a depression or sinkho le in the road at

the area of North Howard Street where the accident occurred. T he Eliases filed a complaint against the City alleging that the City knew of the sinkhole and the “u nreasonably dangerous hazard and2

condition” it presented, but that the City “recklessly, wantonl y, willfully, and negligently failed to repair it, barricade or protect against it, or warn of it.” In the complaint the E liases claimed that the sinkhole was the direct and pr oximate cause of the injuries Clare sustained in the accident, and

also asserted a claim fo r loss of consortium. {¶4} The City filed a motion for summary judgment on the basis of po litical subdivision immunity pursuant to R.C. Chapter 2744. In ruling on the motio n, the trial court found that issues of material fact remained as to whether the City is entitled to immunity, and declined to grant summary judgment. {¶5} The City appealed raising two assignments of error for our revi ew. For ease of analysis, we combine those assignments of error.

II. Assignment of Error I The trial court erred by declining to consider the City of Akro n’s arguments addressing proof of negligen ce - duty, breach of duty, and prox imate cause[.] Assignment of Error II The trial court erred by denying the City of Akron’s motion for summary judgment. {¶6} The City argues that the trial court erred when it declined to consider all of the arguments in the City’s motion f or summary judgment, and that t he trial court ultimately erred by denying the motion. {¶7} Under Civ.R. 56(C), summary judgm ent is appropriate when: (1) [no] genuine issue as to any material fact remains to be li tigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it ap pears from the evidence that reasonable minds can come to but one conclusion, and viewi ng such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.3

Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for su mmary judgment, the moving party bears the initial burden of demonstr ating the absence of genuine issues

of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 292 (1996). If the moving party satisfies this burden, the non-moving party “must set forth specific facts sho wing that there is a genuine issue

for trial.” Id. at 293.

A. Political Subdivision Immunity {¶8} “The denial of a motion for summary judgment is not ordinarily a final, appealable

order.” Buck v. Reminderville , 9th Dist. Summit No. 27002, 2014-Ohio-1389, ¶ 5. However, R. C. 2744.02(C) provides that “[a]n ord er that denies a political su bdivision * * * the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.” There is no dispute the City is a political subd ivision of the state of Ohio and entitled to a general grant of immunity. Accordingly, because the trial court’s denial of the motion effectively denied the City the benefit of the political subdiv ision immunity, it is a final order. Hubbell v. City of Xenia , 115 Ohio St.3d 77, 2007-Ohio-4839, ¶ 2. Our review is limite d to the alleged errors in the portion of the trial court’s decision whi ch denied the political subdivision the benefit of immunity; and this Court lacks jurisdiction to addre ss any other interlocutory rulings the

trial court made. Owens v. Haynes , 9th Dist. Summit No. 27027, 2014-Ohio-1503, ¶ 8, quoting

Makowski v. Kohler , 9th Dist. Summit No. 25219, 2011-Ohio-2382, ¶ 7-8. {¶9} Ohio’s Political Subdivision Tort Liability Act, which governs political subdivision liability and immunity, is codified in Chapter 2744 of the Revi sed Code. A court engages in a three-tiered analysis to deter mine whether a political subdivis ion is immune from liability for damages in a civil action. Moss v. Lorain Cty. Bd. of Mental Retardation , 9th Dist. Lorain No. 13CA010335, 2014-Ohio-969, ¶ 10. The f irst tier establishes ge nerally that “a political4

subdivision is not liable in damages in a civil action for inju ry, death, or loss to person or property allegedly caused by any act or omission of the political subdiv ision * * * in connection with a governmental or proprietary function.” R.C. 2744.02(A)(1); Moss at ¶ 10. In the second tier, we consider the applicability of any of the five exceptions to imm unity listed in R.C. 2744.02(B)(1)- (5). If any of those exceptions apply, we move to the third ti er to consider whether immunity can

be restored based on the defen ses enumerated in R.C. 2744.03. Id

. B. General Immunity and the R.C. 2744.02(B) Exceptions {¶10} There is no dispute that the C ity qualified, at the first tier of the analysis, for a general grant of immunity under R.C. 2744.02(A). Regarding the second tier of the analysis, the City presented several arguments in its motion for summary judg ment claiming that none of the R.C. 2744.02(B) exceptions applied in this case. In particular , the City argued the inapplicability of R.C.2744.02(B)(3), which states: Except as otherwise provided in [R.C. 3746.24], political subdi visions are liable for injury, death, or loss to person or property caused by their ne gligent failure to keep public roads in repair and other negligent failure to remove ob structions from public roads, except that it is a full defense to that liability, when a bridge within a municipal corporation is involve d, that the municipal corporati on does not have the responsibility for maintaining or inspecting the bridge. Thus, pursuant to R.C. 2744.02(B)(3), the City may be held liab le for injuries caused by its negligent failure to keep public roads in repair. Pelletier v. Campbell , 153 Ohio St.3d 611, 2018- Ohio-2121, ¶ 19. {¶11} First, the City argued that R.C. 2744.02(B)(3) was inapplicable because the City was not required to place a traffic control device at the site of the sinkhole. The City then asserted seven arguments contending that “the City is immune from liabil ity and the R.C. 2744.02(B)(3) exception does not apply because[:]”5

1. “Elias cannot prove the duty element in a negligence analysis; the city owed no duty to Elias under the public duty rule”

2. “Elias cannot prove the duty element in a negligence analysis; the condition was open and obvious”

3. “Elias cannot prove the duty element in a negligence analysis; the city owed no duty of care to Elias because s he assumed the r isk of her actio n”

4. “Elias cannot prove the city breached a duty of care owed to El ias as a licensee”

5. “Elias cannot prove the city breached a duty of ordinary care”

6. “Elias cannot prove the proximate cause element in a negligence analysis; Elias’ own act or omission in failing to discover the condition and av oid the risk of harm was the last act or omission that preceded the accident and was the proximate cause of Elias’ injurie s and damages”

7. “Elias cannot prove the proximate ca[u]se element in a negligen ce analysis; Elias’ comparative negligence was greater than any negligence of the c ity as a matter of law”

1. The City’s Arguments the Trial Court Declined to Consider {¶12} The City faults the trial court for declining to consider the s even arguments asserted in the motion that, according to the City, “address[] the negli gence component embodied in the exception[.]” In its judgment en try, the trial court noted that the City of Akron argued multiple other legal theories und er the heading of political subdivision immunity in its brief such as the public duty rule, the open and obvious doctrine, etc. However, these defenses represent defen ses independent of sovereign immunity. * * * Because the City only presented these arguments within the structure of political subdivi sion immunity, the [c]ourt fi nds its determination on political subdivision immunity resolves the entirety of the [m]otion for [s]ummary [j]udgment. The [c]ourt therefore finds good cause to deny the [m]otion for [s]ummary [j]udgment based upon political subdivision immun ity. The City contends that this was “ an incomplete determination on the issue of proof of the R.C. 2744.02(B)(3) exception[.]” The City argues that, “[u]nless [C lare] can establish negligence[— ]which is essential to R.C. 2744.02(B)(3)[—]then her claim fail s.” In order to address this argument, this Court must address a threshold issue regarding t he scope of our review.6

{¶13} To establish liability on a claim of negligence, a plaintiff mu st show “the existence of a duty, a breach of that duty, and an injury proximately res ulting from the breach of duty.” Mondi v. Stan Hywet Hall & Gardens, Inc. , 9th Dist. Summit No. 25059, 2010-Ohio-2740, ¶ 11. However, “[s]tatutory immunity , including political-subdivision immunity, is an affirmative defense[.]” Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow , 137 Ohio St.3d 23, 2013-Ohio-2410, ¶ 17, citing Turner v. Cent. Local School Dist. , 85 Ohio St.3d 95, 98 (1999). An affirmative defense is a new matter which, assuming the comp laint to be true, constitutes a

defense to it. Davis v. Cincinnati, Inc. , 81 Ohio App.3d 116, 119 (9th Dist.1991). Specifically, “[a]n affirmative defense is any defensive matter in the nature of a confession and avoidance. It admits that the plaintiff has a claim (the ‘confession’) but as serts some legal reason why the plaintiff cannot have any recovery on that claim (the ‘avoidanc e’).” State ex rel. The Plain Dealer Publishing Co. v. Cleveland , 75 Ohio St.3d 31, 33 (1996). The burden of proving an affirm ative defense rests with the party asserting the defense. Nationstar Mtge., L.L.C. v. Mielcarek , 9th Dist. Lorain No. 15CA010748, 2016-Ohio-60, ¶ 11. {¶14} The trial court declined to consider these arguments because, d espite the City’s attempt to raise them within t he context of political subdivisi on immunity, the court determined that the arguments presented defenses independent of the defens e of statutory immunity. The issue at this stage of the analysis is whether the City can meet its summary judgment burden to demonstrate the absence of a factual dispute as to the inapplic ability of the R.C. 2744.02(B)(3) exception. If the City were to meet its burden, and if the Eli ases were unable to meet the reciprocal burden to show some genuine issue of material fact in dispute r egarding the applicability of the R.C. 2744.02(B)(3) exception to immunity, the affirmative defen se of statutory immunity would allow the City to avoid liability regardless of whether the Eli ases could prove the elements of the7

underlying claims. However, the arguments asserted by the City consist of defenses that aim to negate elements of the underlying cause of action or present al ternative affirmative defenses. The City has failed to demonstrate how these arguments have any bea ring on, or relevance to, the second tier of the political subdi vision immunity analysis. {¶15} Certainly, such defenses may be available to the City independent of the affirmative defense of political subdivision immunity. However, “[t]o the extent that the City asks this Court to address the substance of [the arguments seeking to negate an element of Clare’s underlying negligence claim or present alternative affirmative defenses], those issues fall outside the scope of the instant appeal which pertains solely to whether the trial c ourt erred in denying the City the benefit of immunity pursuant to R.C. 2744.02(A).” Davis v. Akron , 9th Dist. Summit No. 27014, 2014-Ohio-2511, ¶ 14; see Shepard v. Akron , 9th Dist. Summit No. 26266, 2012-Ohio-4695, ¶ 32 (“Because the City’s appeal is limited to the court’s denial of immunity and the public duty rule is independent of immunity, the issu e is outside the scope of this appeal.”); Baab v. Medina City Schools Bd. of Edn. , 9th Dist. Summit No. 28969, 2019-Ohio-510, ¶ 15 (Questions ab out the source of a duty are beyond the scope of a limited immunity app eal.).

2. R.C. 2744.02(B)(3) {¶16} As discussed above, the pertinen t question at this second tier of the analysis is whether R.C. 2744.02(B)(3) provides an exception to the general grant of immunity. Because the only issue pertaining to immunity that the City raised below an d on appeal is the City’s contention that R.C. 2744.02(B)(3) is rendere d inapplicable by R.C. 2744.0 1(H), we confine our analysis accordingly. See Ponyicky v. Brunswick , 9th Dist. Medina No. 15C A0097-M, 2017-Ohio-37, fn.1. R.C. 2744.01(H) defines “public roads” as “public roads, highwa ys, streets, avenues, alleys, and bridges within a political subdivision.” The City emphasizes t hat the definition of public roads8

“does not include * * * traffic control devices unless the traf fic control devices are mandated by

the Ohio manual of uniform t raffic control devices.” {¶17} In its merit brief, the City argues that, based on the timing o f the incident, the placement of traffic control devices was not mandated by the Oh io manual of uniform traffic control devices. The City fails to support its argument by exp laining the relevance of “traffic

control devices” in the context of this case. While traffic co ntrol devices may be excluded from the definition of public roads w here they are not mandated, the City has not supported its claim that this distinction removes any issues of fact regarding its alleged failure to keep a public road— rather than a traffic device—in repair. Because there are no a llegations that the City failed to

maintain a traffic control device , we conclude that this argume nt lacks merit. {¶18} The trial court found that issues of material fact remain as to whether the city was negligent in failing to repair or properly protect a portion of a public road with a known and potentially hazardous sinkhole. The City has not raised any ar gument, cited to any authority, or pointed to any portion of the record to demonstrate error in th e trial court’s decision. Our review of the record leads this Court to determine that the City faile d to demonstrate the absence of material factual issues as to the City’s assessment of the sink hole as well as any decisions regarding the repair and the safeguarding of the road. Therefore, we con clude that the City failed to meet its

burden to establish the absence of a genuine issue of material fact as to the inapplicability of R.C. 2744.03(B)(3), and the trial court properly concluded that the City was not entitled to a summary judgment determination of immunity in the second tier of the an alysis.

C. R.C. 2744.03 Defenses to Restore Immunity9

{¶19} Regarding the third tier of analysis, the City argues that even assuming Clare “could demonstrate that the R.C. 2744.02(B)(3) exception applies, the City retains immunity pursuant to R.C. 2744.03(A).” {¶20} If an R.C. 2744.02(B) exception to immunity applies, the politi cal subdivision may still establish nonliability through a defense or immunity list ed in R.C. 2744.03(A). The City

asserts two defenses stated in R.C. 2744.03(A): (3) The political subdivision is immune from liability if the a ction or failure to act by the employee involved that gave rise to the claim of liabili ty was within the discretion of the employee with respect to policy-making, plann ing, or enforcement powers by virtue of the dutie s and responsibilities of the offi ce or position of the employee.

* * * (5) The political subdivision is immune from liability if the i njury, death, or loss to person or property resulted from the exercise of judgment or di scretion in determining whether to acquire, or how to use, equipment, suppl ies, materials, personnel, facilities, and other re sources unless the judgment or discretion was exercised with malicious purpos e, in bad faith, or in a wanton or reckless manner. {¶21} This Court has held that “the exceptions to immunity set forth in R.C. 2744.03 must be narrowly construed.’” Shumaker v. Park Lane Manor of Akron , 9th Dist. Summit No. 25212, 2011-Ohio-1052, ¶ 19, quoting Sturgis v. E. Union Twp. , 9th Dist. Wayne No. 05CA0077, 2006- Ohio-4309, ¶ 18. “‘Routine decisi ons are not shielded by immuni ty under R.C. 2744.03(A)(3) or 2744.03(A)(5).’” Id. quoting Sturgis at ¶ 18. “‘A “discretionary” act necessarily involves “[s]ome positive exercise of judgment tha t portrays a considered adopti on of a particular course of conduct in relation to an object to be achieved[.]”’” Id. quoting Sturgis at ¶ 18, quoting Addis v. Howell , 137 Ohio App.3d 54, 60 (2d Dist.2000). {¶22} The City contends that its employees exercised judgment and dis cretion regarding

the sinkhole and the condition of the road. The City argues th at it “is immune from liability unless10

[Clare] proves that the City empl oyees exercised their discreti on with malicious purpose, in bad faith, or in a wanton or reckle ss manner.” This contention ref lects the City’s misunderstanding of its dual burdens: (1) to establish its affirmative defense of s tatutory immunity, and (2) to demonstrate the absence of a genuine issue of material fact to show that it is entitled to summary judgment. Mielcarek , 2016-Ohio-60 at ¶ 11; Dresher , 75 Ohio St.3d at 292-293. Rather than demonstrating that immunity is restored by a R.C. 2744.03 defen se, the City attempts to prematurely shift the burden to the Eliases. {¶23} As both the party asserting the affirmative defense and the par ty moving for summary judgment, the burden was upon the City to show that it was entitled to summary judgment on the issue of the applicability of a defense stated in R.C. 2744.03(A). In its brief, the City fails to cite to any relevant authority or present any mea ningful argument to support the contention that the City’s acti ons were a proper exercise of di scretion. The City did not reference in its motion to the trial court, and does not reference on app eal, any part of the record to support its claim, but instead asserts th at unspecified “evidence filed by the City defeats any such notion” that the City’s actions were not based on the proper exercise o f discretion. See Civ.R. 56; App.R. 12(A)(2). We conclude that the City failed to meet its burden to show that immunity would be reinstated under R.C. 2744.03(A)(3) or (5). Therefore, we conc lude that the tria l court did not err by denying the City’s motion for summary judgment on the issue of the City’s claim of immunity under R.C. Chapter 2744.

III. {¶24} The City’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pl eas is affirmed. Judgment affirmed.11

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

TEODOSIO, P. J. CALLAHAN, J. CONCUR.

APPEARANCES: EVE V. BELFANCE, Director of Law, and MICHAEL J. DEFIBAUGH and JOHN CHRISTOPHER REECE, Assistant Di rectors of Law, for Appellant. A. RUSSELL SMITH, Attorney at Law, for Appellee.